### THE ATTORSEY GENERAL OF TEXAS

August 10, 1987

BonorableRolando J.Menchaca OpinionNo. JM-765 Maverick CountyAttorney P. 0. Box 3041 Re: Whether a sheriff may prohibit Eagle Pass, Texas 78853 county peace officers from carrying weapons into commercial establishments that servealcoholicbeverages

DearMr. Menchaca:

You inform us that the county sheriff has received complaints that armed law enforcement officers from various political subdivisions in the county have been observed patronizing bars or night clubs, drinking alcoholicbeverages, and socializing. After an investigation,itwas determined that, on severaloccasions, thepeace officerswere not acting as securityguards or investigatingcriminal offenses; they were present only as patrons. Section 46.02 of the Penal Code,whichmakes unlawful the carryingofweapons, specifically provides in subsection (c): "An offense under this section is~a felony of the third degree if it occurs on any premises licensed or issued a permit by the state for the sale or service of alcoholic beverages." You correctly point out that section 46.03(a)(6) of the Penal Code specificallyprovides that section 46.02 of the Penal Code is inapplicable to peace officers. See Attorney General Opinion m-613 (1986). Accordingly,you ask: -

Can our local sheriff issue a directive to any and all peace officers in our county to the effect that, while acting as patrons at a drinking establishment, etc., peace officers should leave theirweapons elsewhere? If this cannot be done, is there anything that our sheriff can do to address thisparticularproblem?

We understandyou to ask whether the county sheriffhas the authority to direct the activities of non-county peace officers, as well as county peace officers. Logically, your question could arise in connection both with regard to "on-duty" conduct or activities, as well as "off-duty"conduct. We will address each situation.

Of course, a county sheriffmay direct the activities of peace officers in his employ during their "on-duty"time of employment. See -

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Weberv. City of Sachse, 591 S.W.2d 563 (Tex.Civ. App. - Dallas 1979, writ dism'd). We conclude, however, that the county sheriff is without authority to make such a policy applicable to peace officers who are employees of other political subdivisions in the county. The authority of a county sheriff to direct the "off-duty" activities of peace officers in his employ is more limited, however, to restrictions that are reasonably connected to the proper execution of his law enforcement responsibilities. You do not ask about the reasonablenessof any specificpolicy. Whether any specificpolicy is reasonable is a questionof fact thatwe cannot resolve in the opinion process. We cannot determine the reasonableness of any specific policy that prohibits county peace officers, while armed, from frequenting during their "off-duty" hours sell **or** servealcoholicbeverages. establishments licensed to

County sheriffs generally exercise supervisory control over employees in the county sheriff'soffice. See, e.g.,AttorneyGeneral Opinion H-1190, (1978). County sheriffs are authorized by article 6869,V.T.C.S.,' to appoint deputies "to continue in officeduring the pleasureof the sheriff,who shallhave power and authority to perform all the acts and duties of their principles." See generally Heye v. Moody, 4 S.W. 242 (Tex. 1887);Murrayv. Barris, 112 S.W.Zd 1091 (Tex. Civ. App. - Amarillo 1938, writ dism'd). Article 6870, V.T.C.S., provides that sheriffs shall be responsible for the official acts of their deputies; they are not responsible for unofficial and unauthorized acts of deputies. Workman v. Freeman, 279 S.W.Zd 486 (Tex. Civ. App. Amarillo 1955). aff'd 289 S.W.2d 910 (Tex. 1956); Taylor v. Stanford, 229 S.W.2d 427 (Tex. Civ. App. - Galveston 1950,
no writ). A county sheriffhas the authority to deploy his personnel in anymanner thathe deems appropriate. Weber v. City of Sachse, 591 S.W.2d 563 (Tex. Civ. App. - Dallas 1979, writ dism'd). While the county sheriffmay exercise supervisorycontrol over employeesof his office, he exercises no supervisory control over peace officers employedby otherpolitical subdivisions in the county.

While the county sheriff may not exercise supervisory control
over peace officers employed by other political subdivisions, regardlessof whether control is sought tobe exercisedover "on-duty" time or "off-duty" time, we conclude that he may impose reasonable limitations on the "off-duty" behavior of his own deputies. Generally, a public employer may not discharge a public employee at-will unless the cause for the discharge is reasonably related to

1. Art. 6869, V.T.C.S., has been repealed and replaced, effective September 1, 1987, see now chapter 86, of the Government Code. SeeActs 1987, 70thLeg., ch. 149, §§I, 49.

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employment. See, e.g., Annots., 35 A.L.R. 4th 691 (1985); 33 A.L.R. 4th 120 (1985). Given the fact that law enforcement officers can be thought to be "on-duty" at all times insofar as a peace officer is required to respond to any breach of the peace that occurswithin his view even ifhe isno longerworkinghis assigned "shift,"we conclude that a county sheriff may exercise reasonable "off-duty" control of his deputies.

In Attorney General Opinion JM-613 (1986).we were asked whether
a Texas peace officer commits a crime and is subject to prosecution for amisdemeanor or felony if he carries a handgun either (1)while he is "off-duty" (i.e.,not then actually carryingout dutiesassigned to him by his department), or (2)while he is outside the limits of the territory over which his department has law enforcement jurisdiction. We concluded that a peace officer inTexas,wherever in the state he might be and whether engaged in the actual discharge of his duties, is ~immune from prosecution under section 46.02 of the Penal Code for unlawfully carrying a handgun. One of the primary
reasons that the opinion so held is that Texas courts have consistently concluded that a peace officer, at least when he is within his normal jurisdiction, remains a peace officer,twenty-four hours a day and possesses the full powers of a peace officer in the presence of criminal activity.. See Wood v. State, 486 S.W.2d 771 (Tex. Grim. App. 1972); Sims v. State, 319 S.W.2d 717 (Tex. Grim. App. 1958). The Code of Criminal Procedure, article 2.13, makes it the duty of every peace officer to preserve the peace within his jurisdictionat all times andnotmerely duringhis "on-duty"hours or "shift." See Attorney General Opinion JM-140 (1984). Similarly, the
cases of Preston v. State, 700 S.W.2d 227 (Tex. Grim. App. 1985) and Christopherv. State, 639 S.W.2d 932 (Tex.Grim. App. 1982), leaveno doubt that every Texas peace officer remains a peace officer even while outside the territorial limits of his normal jurisdiction, althoughhis power to actmay be more limitedoutside theseboundaries thanwithin them.

Because a peace officer employedby the countymay be calledupon to exercise his duty as a peace officer even when he is not working his regular shift, we conclude that a county sheriff may exercise reasonablecontrol over the "off-duty" conduct or behavior of his law enforcement employees, so long as such direction or control is reasonably related to the proper requirements of "on-duty" conduct. You do not **ask** about the reasonablenessof any specificpolicy. Such
a determinationwould require a finding of fact,which we decline to make in the opinionprocess.

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SUMMARY

A sheriff is ordinarily without authority to direct the activities, whether "on-duty" or "off-duty,"ofpeace officerswho are employees of other political subdivisions in the county. The authority of a sheriff to direct the "off-duty" activities of peace officers in his employ is limited to restrictions that are reasonably related to proper "on-duty" employment.

MARY KELLER ExecutiveAssistantAttorney General

JUDGE ZOLLIE STEAKLEY SpecialAssistantAttorneyGeneral

RICK GILPIN Chairman,OpinionCommittee
Preparedby JimMoellinger AssistantAttorneyGeneral

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